Malupo v Police

[2018] NZHC 801

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-048

[2018] NZHC 801

BETWEEN

DEREK MALUPO

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	23 April 2018
Counsel:	V Heather for Appellant I Ko for Respondent
Judgment:	26 April 2018

JUDGMENT OF WHATA J

This judgment was delivered by me on 26 April 2018 at 3.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ………………………….

Solicitors:           Kayes Fletcher Walker Limited, Manukau

MALUPO v POLICE [2018] NZHC 801 [26 April 2018]

[1]    Mr Malupo was sentenced to six months’ community detention and 18 months’ intensive supervision in relation to multiple charges, including burglary, possession of an offensive weapon, threatening behaviour, dangerous driving, failing to stop, and ill- treatment of a child. He breached the conditions of his sentence. He was re-sentenced to 27 months’ imprisonment, taking into account the breaches. He now appeals against that re-sentence as manifestly excessive.

Background

[2]Mr Malupo pleaded guilty to the following matters.

Burglary

[3]    On 28 February 2016, Mr Malupo entered a residential home and burgled items from the house, which were in total valued at $3500. The items stolen included an Xbox console, Toshiba laptop, Microsoft laptop, and a small digital tablet in an Adidas bag. The victim and his five-year-old son entered the property, and found Mr Malupo inside the house. Mr Malupo was chased by the victim until he was apprehended by members of the public.

Threatening behaviour

[4]    On 26 March 2016, Mr Malupo argued with his long-term partner and, whilst his partner was sitting outside on a deck by their garage, Mr Malupo hit the garage above the victim’s head with a shovel.

Failing to stop, driving in a dangerous manner, ill-treatment of a child, possession of an offensive weapon

[5]    On 24 June 2016, Mr Malupo was driving a car with his partner and their four- year-old son. The son was sitting on his mother’s lap in the front passenger seat of the car, and was unrestrained. A Police Officer attempted to pull the car over by activating the red and blue lights of his vehicle, but Mr Malupo drove away at speeds of 80 km/h in 50 km/h zones. At one stage, he crossed the centre line onto the wrong side of the road because he could not  control  his  vehicle  at  the  speed  he  was  travelling.  Mr Malupo eventually stopped and ran from his car. The Police found the child

standing in the front passenger’s footwell of the car, and also found a machete in the driver’s side footwell.

[6]Mr Malupo also failed to answer District Court bail on two occasions.

Judge Blackie’s sentencing indication

[7]    Judge Blackie gave a starting point of two and a half years’ imprisonment, “bearing in mind” Mr Malupo’s previous convictions, the fact he is a recidivist burglar, and that the burglary was serious, based on the value of the items stolen and the confrontation with the occupants. He indicated that there may be a discount, but it would be a sentence of imprisonment.

Judge McIlraith’s sentencing

[8]    Judge McIlraith noted that Mr Malupo had been on remand for seven months, and referred to Judge Blackie’s sentence indication. However, Judge McIlraith sentenced Mr Malupo to six months’ community detention and 18 months’ intensive supervision. He based this on the time Mr Malupo had spent in custody (seven months), the support he had, his willingness to engage in rehabilitation and his work prospects. Mr Malupo was also disqualified from driving for six months for the dangerous driving charge and for a further three months after that for failing to stop for the Police.

Judge Andrée Wiltens’ sentencing

[9]    Judge Andrée Wiltens recorded Judge Blackie’s sentencing indication and he observed that Judge McIlraith factored into account the seven months spent in custody when imposing a community-based sentence. The Judge then rejected a community- based re-sentence. He said:

[4] Mr Heather says that I should deal with you within the community. I regret to say that I cannot. It seems to me that to do that is to ignore some of the fundamentals that are set out in the purposes and principles of sentencing. Most of those involve deterrence, holding you accountable for your offending, but protecting the community is a big one and then dealing with the actual mechanics, if you like, of sentencing, making sure that you get sentenced in

the same way as others in your like situation have been sentenced and ending up with the least restrictive outcome that is available, taking into account possibilities of rehabilitation and things of that kind.

[10]    Judge Andrée Wiltens set a starting point of two years’ imprisonment. In fixing this starting point, he included a six-month discount for Mr Malupo’s seven months in custody. He then uplifted for the new offences, including two breaches of the community sentence and driving while disqualified (third and subsequent), which resulted in a starting point of two and a half years’ imprisonment. He then reduced the sentence to 27 months’ imprisonment to reflect the guilty pleas. Mr Malupo was also disqualified from holding or obtaining a drivers licence for 18 months, backdated to 26 January 2017.

[11]The Judge also observed:

[7]     The one thing that I think shines through here is that you prefer to be in prison than within our community. You keep offending. It is very easy not to offend. The things that you are doing are not difficult. You are just doing it because you cannot control yourself or you do not want to control yourself. You do not have to drive without a license yet you do so. You can comply with these rehabilitative sentences very easily if you choose to do so. It is your choice and at the moment you are choosing to go to jail which is not a very smart choice, it seems to me. Once you have served your sentence this time, I hope you have learnt your lesson and do not come back.

The frame for re-sentencing

[12]   Section 69I of the Sentencing Act 2002 sets the frame for re-sentencing. It states:

69I      Variation or cancellation of sentence of community detention

(1)An offender who is subject to a sentence of community detention, or a probation officer, may apply, in accordance with section 72, for an order under subsection (3) on the grounds that—

(a)the offender is unable to comply, or has failed to comply, with any conditions of the sentence; or

(b)….

(c)….

(2) ….

(3)On an application under subsection (1) or (2), the court may, if it is satisfied that the grounds on which the application is based have been established -

(a)suspend or vary the curfew period; or

(b)vary the curfew address; or

(c)cancel the sentence; or

(d)cancel the sentence and substitute any other sentence (including another sentence of community detention) that could have been imposed on the offender at the time that the offender was convicted of the offence for which the sentence was imposed.

(3A)     …

(4)When determining a substitute sentence to be imposed under subsection (3)(d), the court must take into account the portion of the original sentence that remains unserved at the time of the order.

[13]   The leading authority for re-sentencing of breaches of community-based sentences is R v Morgan.1 Relevantly to the present case, the Court noted:

[15] Accordingly, while we accept that there must be some proportionality between the sentence originally imposed and the substituted sentence, we do not consider that there can be any strict correlation between them, much less some mathematical formula. The essential point is that the substituted sentence must be one that could properly have been imposed initially; and it must be imposed against the background that a sentence of community work was thought initially to be appropriate. In the present case, the appellant’s failure to make any real effort to comply with the community work sentence meant that a community based sentence was unsupportable and a sentence of imprisonment inevitable. But such a sentence had to be imposed against the background that a sentence of 150 hours of community work was initially seen as the appropriate sentence.

[14]   The Court of Appeal in that case held that the re-sentence of eight months’ imprisonment bore no relationship to the original sentence of 150 hours community work or the factors which gave rise to it, and was wrong in principle. The Court imposed instead a sentence of three months’ imprisonment for assault with a weapon, two months for the breach of community work and one month for a trespass charge.

1      R v Morgan [2008] NZCA 232.

[15]   I am also assisted by the decision of Ellis J in Hough v Police.2 In that decision, the Judge considered specifically the effect of s 64I(4). The Judge notes:

[20] I accept entirely that there is no mathematical conversion formula and that a resentencing may legitimately involve a modicum of increased firmness. That said, however, the sentence should not include sanction for any breach of the earlier sentence and there is a need for overall proportionality. But the most important reality here is that Mr Hough had very nearly completed his original sentence. Moreover, the fact that he did not complete it was largely (if not wholly) due to the fact that he was denied bail in relation to his later, separate offending.

[16]For my part, the foregoing statements devolve into the following propositions:

(a)The sentence must be one that could have been imposed initially;

(b)The re-sentence must not include an element for the breach of the original sentence;

(c)There must be some proportionality between the sentence originally imposed and the substitute sentence, but there does not need to be any strict correlation between them;

(d)Re-sentencing may legitimately involve a modicum of increased firmness; and

(e)The re-sentencing judge must have regard to the unserved part of the earlier sentence.

Argument

[17]Mr Heather submits for Mr Malupo:

(a)Judge Wiltens failed to consider the portion of the original sentence remaining unserved.

2      Hough v Police [2017] NZHC 93.

(b)The basis for Judge Wiltens’ starting point of 30 months is unclear.

(c)The remainder of the community detention sentence (three months) was the equivalent to a sentence of six months’ imprisonment and therefore an effective substituted sentence of 24 months’ imprisonment was manifestly excessive.

(d)Judge McIlraith’s decision to impose a rehabilitative end sentence reflected the fact that the appellant had served already seven months in custody.

[18]Mr Ko submits the re-sentence was not manifestly excessive:

(a)The starting point adopted by Judge Wiltens for re-sentence was well within the range available to him for the offending and Mr Malupo’s history of prior offending;

(b)The re-sentence broadly correlates to the original sentence, noting that community detention and a lengthy period of intensive supervision is close to imprisonment in the sentencing hierarchy; and

(c)The re-sentencing exercise had to incorporate three new charges, including driving while disqualified.

[19]   Mr Ko notes that the only available criticism is that Judge Wiltens failed to refer to the portion of the original sentence already served.

Assessment

[20]   The evaluation of the appropriate sentence is complicated by the combined sentencing for the two rounds of charges. I have found it necessary to disaggregate the sentence to assess whether the sentence handed down on the initial offending and the offending overall by Judge Wiltens is manifestly excessive.

[21]   Dealing first with the starting point for the initial charges. A starting point of two years six months was within the range of sentences available to Judge Wiltens for the initial offending (including an uplift for prior offending).3 However:

(a)a discount of six months for time served was not available to the Judge per s 82 of the Sentencing Act;

(b)no discount appears to have been given for guilty pleas to the original charges (though the guilty discount for the second-round of offending appears excessive at 3 months or 50 per cent);

(c)no apparent consideration has been given to proportionality between the initial sentence and the resentence; and

(d)no regard was given to the remaining part of the sentence to be served per s 69I(4).

[22]   Given this combination of apparent errors and omissions, I am satisfied I should examine the sentence afresh.

[23]   First, I adopt the starting point of two years six months for the initial offending (and prior offending) on which Mr Malupo was originally sentenced. It appears to be the same starting point used by the sentencing Judges. Unlike those sentencing Judges, I do not discount the sentence for the time in custody. That is a matter for Corrections. Turning to personal circumstances, a small discount for Mr Malupo’s genuine attempts at rehabilitation of 5 per cent would have been available at the time of the initial sentencing. However, while the breaches of his original sentence are not aggravating features, a discount for this factor is no longer appropriate.

[24]   So only a discount for guilty plea is available. There is scant information available to me about when Mr Malupo pleaded guilty. It was plainly not at the first available opportunity. He did not accept the sentencing indication and served seven months in prison at the time of sentence. Mr Ko agreed, however, that a discount of

3      Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78].

10-15 per cent might be appropriate. This would equate to a discount of three to five months. An end re-sentence therefore of 25-27 months would appear to be justified for the initial offending.

[25]   I must then look to proportionality with the first sentence and the quantum of the sentence to be served. I agree with Mr Ko that the combination of six months community detention and 18 months intensive supervision is sufficiently close to the sentence of imprisonment on the sentencing hierarchy to treat it as broadly comparable to a short sentence of imprisonment. I do not accept, however, Mr Heather’s submission that it is appropriate to adopt a two (months of imprisonment) to one (month of community detention) ratio based on the formula sometimes used for fixing a home detention sentence. A sentence of community detention does not involve the same level of incursion on personal liberty as either home detention or imprisonment.

[26]   As to the term of imprisonment, Mr Malupo had 50 per cent of his community detention to serve and 80 per cent of his intensive supervision. In my estimate, this broadly correlates to two-thirds of the original sentence left to be served. On a broad pro-rate basis, this would suggest a reasonable end point of 17 to 18 months for the initial offending, in light of the original sentence, and the balance of the sentence to be served.

[27]   Mr Malupo must also be sentenced for the driving while disqualified (third and subsequent) and the breaches. Unfortunately, I do not have a detailed account of the facts of this offending. In any event, a combined sentence of six months, less 25 per cent for guilty pleas, or 1.5 months, is appropriate. As a result, an end sentence of about 22 to 23 months on all offending would fairly serve the purposes and principles of sentencing, in light of the original sentence.

[28]   Accordingly,  the  difference  between  the  sentence  fixed  by  the  Judge  (27 months) is about 4-5 months or 17-23 per cent higher than my calculation. I am satisfied therefore that the re-sentence was manifestly excessive. I therefore allow the appeal, set aside the sentence of 27 months and replace it with a sentence of 23 months. As noted, it will be for Corrections to consider the time served by Mr Malupo.